F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 4, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-2209
LOU IS J. CH AV EZ,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D .C . NO. CR-04-1348-M CA)
David A. Streubel, Kelley-Streubel LLC, Albuquerque, New M exico, for
Defendant-Appellant.
David N. W illiams, Assistant United States Attorney (David C. Iglesias, United
States A ttorney, and Laura Fashing, Assistant United States A ttorney, with him
on the brief), Office of the United States Attorney, Albuquerque, New M exico,
for Plaintiff-Appellee.
Before H E N RY, SE YM OU R, and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge.
A jury convicted Gilbert Herrera and Louis John Chavez of conspiring to
traffic cocaine. During the trial, and over the objections of Herrera and Chavez,
the district court allowed a federal law enforcement agent to testify to the
presence of Chavez’s truck at the scene of two alleged drug exchanges. That
portion of the agent’s testimony was not based on personal information, but relied
instead on information overheard from radio surveillance reports.
Upon further consideration while hearing the testimony, the district court
reversed its ruling allowing the testimony. The court found the testimony
inadmissible hearsay in violation of the Sixth Amendment’s Confrontation Clause
and struck the portion relying on radio surveillance. The defendants immediately
moved for a mistrial. The district court denied the motion, concluding that a
curative instruction directing the jury to ignore the testimony would adequately
address the hearsay violation.
W e agree with the government that the admission of the testimony was
harmless error. Accordingly, we affirm the district court’s denial of the motion
for mistrial.
I. Background
After nearly a four-year investigation conducted by the Federal Bureau of
Investigation, the government charged Louis Chavez and his brother-in-law,
Gilbert Herrera, with conspiracy to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. Herrera and Chavez were
tried together before a jury beginning on November 9, 2004.
2
On the trial’s second day, the government called FBI Agent M ichael Krause
to testify to various aspects of the FBI’s surveillance of Herrera and Chavez.
Before his testimony began, the government conceded that Krause would attest to
what other agents observed and contemporaneously described over the radio. The
government informed the court that the other agents would not take the stand.
Counsel for Herrera objected to the propriety of Krause testifying to the
observations made by non-testifying agents claiming a violation of the Sixth
Amendment’s right of confrontation. According to the defendants, the non-
testifying agents were available to testify at trial and their proposed testimony had
never been tested by cross-examination, and therefore Agent Krause’s testimony
would violate the rule established in Crawford v. Washington, 541 U.S. 36 (2004)
(holding that testimonial hearsay violates the Sixth Amendment).
The district court ruled that Agent Krause’s proposed hearsay evidence
would be testimonial in nature and thus implicated Crawford, but allowed the
government to proffer the testimony. In its proffer, the government explained
that Agent Krause would testify that on two occasions he heard other FBI agents
on the radio describing their observations of Chavez’s white truck arriving at and
departing from Herrera’s residence at about the same time as Victoria Guillen, a
paid informant for the FBI. Under FBI instruction, Guillen arranged for the
meetings and would later testify at trial that she obtained cocaine from the two.
At this point, counsels for Herrera and Chavez renewed their objection to the
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testimony regarding the w hite truck under Crawford since they would not be
afforded the opportunity to confront the agents who observed the truck.
The court upheld its prior decision to prohibit Agent Krause from testifying
about w hat other agents told him over the radio regarding Guillen’s activities.
The court reasoned that since the FBI arranged for the drug exchange and
orchestrated Guillen’s movement, her anticipated activities could not properly fall
into the spontaneous, present sense impression exception to hearsay rules.
Nevertheless, the court permitted A gent Krause to testify to other agents’
observations of vehicles unrelated to Guillen, which included the presence of
Chavez’s truck. Counsel for Herrera registered a continuing objection to such
testimony.
Agent Krause proceeded to testify that on September 18, 2000, shortly
before Guillen arrived at Herrera’s residence to conduct a pre-arranged cocaine
exchange, a white pickup truck arrived at the house. After the meeting, Guillen
turned over cocaine received from Herrera and Chavez to the FBI. Agent Krause
stated that the white truck was later identified as belonging to Chavez. Agent
Krause also testified that on September 25, 2000, the same w hite truck arrived at
the Herrera residence shortly before Guillen went to the house to conduct another
cocaine exchange. Again, Guillen turned over cocaine received from the deal.
W hile on the stand, the court became concerned that Agent Krause did not
reveal his testimony was based on reports gleaned from radio surveillance reports
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and that he did not personally observe the white truck. The court asked the
government to lay the foundation for Agent Krause’s observations. After the
government’s attempt to do so, the court reversed itself and announced,
The ruling I made earlier concerning what the witness could or could
not testify to with respect to what he heard on a radio, what was
reported on the radio, you had indicated that there was other - I took
it to mean unrelated matters that were being brought up that didn’t
involve M s. Guillen or her vehicle or her approach to the house and
her responding, playing her part under the plan to go to the house.
[W ]e are now talking about Chavez and Hererra in the same
sentence, testimony concerning buys that occurred at a later time.
It’s a conspiracy allegation, and I’m not sure as I look at [Agent
Krause’s] testimony and listen to what he’s saying that I can separate
out or the jury can separate out any of this. It’s all part of one plan
and scheme. It’s very clear. I’m going to sustain that objection. I
am going to give an instruction to the jury.
App. Vol. VIII at 108–09.
The court then decided, “I’m going to strike the testimony of w itness
Krause as to any matters relating to a white truck being observed on the 18th or
on the 25th because that testimony was not from his own personal knowledge or
observation, but I’m going to offer the defendants a limiting instruction.” Id. at
124. The court also offered the government the opportunity to call the agents
who personally witnessed the white truck to testify. The government declined
since it w ould require calling four to six witnesses to the stand.
Counsel for Herrera immediately moved for a mistrial arguing that a
limiting instruction could not cure the prejudice suffered from the placement of
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Chavez’s car at two purported drug deals. The court included Chavez as joining
the motion, but rejected the motion and submitted a curative instruction to the
jury. 1
The remainder of the government’s case involved tw o other w itnesses,
Paul John M ontoya and Victoria Guillen. M ontoya testified that between the fall
of 2000 and November 2003, he purchased approximately a quarter kilogram of
cocaine from Herrera and Chavez once or twice a month.
Victoria Guillen, a member of Chavez’s family and a long-time family
friend of Herrera, began working for the FBI as an informant in the summer of
2000. In exchange for her assistance, her husband received a work permit and
they received monetary payments from the FBI.
1
The district court stated,
I’m going to instruct you as follows. During the course of the trial, I
admitted certain testimony from Agent Krause which I’m going to
instruct you to disregard. That testimony referred to observations of a
white truck at a location on September 18 and September 25 of the year
2000. This information was received from other agents, and it involved
reference to a white truck on two occasions. This testimony was
erroneously admitted, and I have stricken it from the record in its
entirety as it relates to the truck, and also, the fact that the truck was
registered to the Defendant Louis John Chavez. I instruct you that this
testimony must not be considered by you as evidence in this case and
must not be considered in your deliberations.
App. Vol. V III at 141.
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Guillen testified that the FBI instructed her to meet with Herrera to
consummate a cocaine purchase on September 18, 2000. W hen she went to
Herrera’s residence, she observed Herrera and Chavez sitting in a white truck
with Herrera in the driver’s seat and Chavez in the passenger seat. She further
testified that she got into the truck and paid Herrera $250 for the cocaine he had
previously given her and that Chavez dropped another ounce of cocaine in her
purse while she was in the truck. She did not have the money to pay for the
cocaine but Herrera and Chavez agreed to let her pay them back later. She
remitted the cocaine to the FBI after the meeting.
Guillen also testified she went to Herrera’s property on September 25, 2000
to pay for the cocaine they gave her at the September 18th meeting. W hen she
arrived at the property, she noticed Herrera sitting in a white truck with another
individual. Herrera and Guillen exited their cars and Guillen paid $550 for the
cocaine. She also testified that she talked to both Herrera and Chavez, sometimes
together and sometimes separately, to arrange other purchases of cocaine. M any
of these conversations were recorded and introduced into evidence.
On November 15, 2004, the jury found Herrera and Chavez guilty of the
conspiracy charge. The district court subsequently sentenced Chavez to a ten-
year term of imprisonment followed by an eight-year term of supervised release.
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II. Analysis
Chavez contends that the district court abused its discretion by refusing to
grant a mistrial after the prosecution introduced inadmissible hearsay testimony in
violation of the Sixth Amendment’s Confrontation Clause. 2
Violations of the Confrontation Clause are subject to harmless error
analysis, United States v. Summers, 414 F.3d 1287, 1303 (10th Cir. 2005), under
which “the beneficiary of a constitutional error must prove beyond a reasonable
doubt [that] the error complained of did not contribute to the guilty verdict.”
United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991) (citing Chapman v.
California, 386 U.S. 18, 24 (1967)). W e review the record de novo.
In assessing harmless error, we look to “the context in which the statement
was admitted, how it was used at trial, and how it compares to the properly
admitted evidence.” Summers, 414 F.3d at 1303; United States v. Toles, 297 F.3d
959, 968 (10th Cir. 2002). Several factors are helpful in determining whether a
Confrontation Clause violation amounts to harmless error, among them (1) the
importance of the witness’s testimony in the prosecution’s case, (2) the
cumulative nature of the testimony, (3) the presence or absence of corroborating
2
The Sixth Amendment provides, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted w ith the witnesses against
him.” U.S. C ONST . amend. VI. The government does not challenge the district
court’s ruling that Agent Krause’s testimony violated the Confrontation Clause
under Crawford. W e assume without deciding that the district court’s ruling is
correct for purposes of this appeal.
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or contradictory testimony, (4) the extent of cross-examination otherwise
permitted, and (5) the overall strength of the prosecution’s case. Id. (citing Toles,
297 F.3d at 968).
In this case, for a number of reasons, we are satisfied that Agent Krause’s
testimony in contravention of the Sixth Amendment was harmless. First of all,
the testimony was cumulative of eyewitness testimony. Agent Krause described
the surveillance operations that took place on September 18 and 25, 2000. He
described the arrival of a white truck at Herrera’s residence on September 18
shortly before a scheduled drug deal with Victoria Guillen and that the truck was
later identified as belonging to Chavez. He then stated that the white truck
arrived at the same scene on September 25 shortly before another drug exchange
with Guillen and departed shortly after.
Guillen attended both drug deals. In her testimony, she stated that she
personally observed the white truck and that it was present at both transactions on
September 18 and September 25, 2000. In fact, she described in detail how the
September 18th drug deal actually occurred inside the white truck. At the
September 25th meeting, she stated that Herrera was sitting in a white truck when
she arrived at the location. Accordingly, her testimony goes much further in
linking Herrera and Chavez with the white truck at the site of numerous drug
exchanges than that of Agent Krause. In any event, Chavez and Herrera offered
9
no contradictory evidence to cast doubt on Guillen’s testimony regarding the
white truck.
Second, in the context of this trial, Agent Krause’s testimony regarding the
white truck was relatively unimportant to the government’s case considering the
totality of evidence against Chavez and Herrera. See Sum mers, 414 F.3d at 1303
(finding substantial evidence of guilt renders a Crawford violation harmless
beyond a reasonable doubt). The government provided ample evidence to support
the conspiracy charge. Guillen testified that she engaged in numerous drug
exchanges w ith both H errera and Chavez. M any of these conversations were
recorded and introduced into evidence. In fact, during one transaction, Chavez
was captured on tape cutting a kilogram of cocaine in half. In addition, Paul
M ontoya testified that he routinely purchased cocaine from Herrera and Chavez,
and that they were together during many of the transactions. Any testimony as to
the white truck is of limited importance given the overwhelming direct testimony
of Chavez’s role in the drug conspiracy. Indeed, the fact that the government
declined the district court’s invitation to call the agents who actually observed the
white truck indicates Agent Krause’s testimony about the white truck was not
central to the government’s case.
Finally, the district court’s curative instruction diminished any error in
admitting the hearsay testimony. See United States v. M assey, 687 F.2d 1348,
1353 (10th Cir. 1982) (finding that a curative instruction is a factor in harmless
10
error analysis). The jury was quickly instructed to disregard that portion of Agent
Krause’s testimony and jurors are presumed to follow their instructions. See
United States v. M eridyth, 364 F.3d 1181, 1184 (10th Cir. 2004). M oreover,
Herrera and Chavez had the opportunity to cross-examine Agent Krause as well as
Guillen regarding their observations and memories. Neither the government nor
the defense later referred to the testimony or used it at closing. In this context,
we see no reason to believe the court’s curative instruction was inadequate or to
find any prejudice arising from the admission of the testimony in light of the
substantial other evidence adduced at trial.
In sum, the district court did not abuse its discretion in denying the motion
for mistrial.
III. Conclusion
W e find that error in this case was harmless beyond a reasonable doubt.
Accordingly, we affirm Chavez’s conviction and dismiss this appeal.
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